Response to Commission on a Bill of Rights, Second Consultation

Q12: Should any UK Bill of Rights seek <strong>to</strong> change the balance currently set out under the HumanRights Act between the courts and Parliament?31. Certainly not. Those who “criticise the fact that Parliamentary sovereignty is in their viewundermined by the mechanism of a declaration of incompatibility, since Parliament is effectivelybound by the judgments of the Strasbourg Court” are missing the point, which is that humanrights often have <strong>to</strong> be enforced against the state itself. It was not a local greengrocer in Istanbulwho imprisoned Mr Savda for refusing on grounds of conscience <strong>to</strong> serve in the Turkish Army: itwas the Government of Turkey. 4 Likewise, it is not I that is denying convicted prisoners the right<strong>to</strong> vote, contrary <strong>to</strong> the ruling in Hirst (No. 2): it is HMG and the House of Commons. There is nota great deal of point in being a signa<strong>to</strong>ry <strong>to</strong> the ECHR if Parliament can simply set aside any bitsof the Convention that it does not particularly like.Q13: To what extent should current constitutional and political circumstances in Northern Ireland,Scotland, Wales and/or the UK as a whole be a fac<strong>to</strong>r in deciding whether (i) <strong>to</strong> maintain existingarrangements on the protection of human rights in the UK, or (ii) <strong>to</strong> introduce a UK Bill of Rights insome form?Q14: What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill ofRights?Q15: Do you have any other views on whether, and if so, how any UK Bill of Rights should beformulated <strong>to</strong> take account of the position in Northern Ireland, Scotland or Wales?32. This is a rather difficult issue. In my brief response <strong>to</strong> the previous consultation I wrote that,though I had a certain degree of sympathy with the arguments of the Scottish Governmentabout Justiciary appeals <strong>to</strong> the Supreme Court on human rights points, the ultimate justificationfor the present system was that it is the UK Government, not the Scottish Government, thatguarantees – and is accountable in Strasbourg for – human rights in Scotland. I cited Tyrer vUnited Kingdom [1978] ECtHR (Application No. 5856/72), in which the UK Government founditself in the embarrassing situation of being obliged <strong>to</strong> defend judicial birching (which had beenabolished in the UK itself) under the law then current in the Isle of Man.33. My conclusion is that, so long as the UK is a more-or-less unitary state, the primary responsibilityfor the protection of human rights has got <strong>to</strong> remain with the Westminster Government – onthe grounds that it is HMG that is held accountable in the various international courts, not thedevolved administrations. The devolved administrations cannot become members of the Councilof Europe in their own right, nor can they accede <strong>to</strong> the ECHR: and if HMG is <strong>to</strong> carry the can foralleged breaches of the Convention, HMG must be in control of human rights compliance. Thealternative is responsibility without power.34. The corollary is that domestic legislation, at whatever level of government, needs <strong>to</strong> beconsistently ECHR-compliant across the whole of the United Kingdom, not excluding the CrownDependencies. The Isle of Man long ago abolished judicial corporal punishment – which is just aswell, because no-one would want <strong>to</strong> go through Tyrer again. Would they?Frank Cranmer6 August 20124 Savda v Turkey [2012] ECHR 42730/05 (12 June 2012) [French text only].8